When a client wishes to investigate a personal injury claim*, their medical records are a key element in building a case. For example, if you take a claim against a hospital/doctor for an injury suffered that you believe was the result of medical negligence, or if you have been involved in a road traffic accident, you will need to prove that the accident, or the negligence, was the cause of your injuries. Therefore, in such cases, medical records will form an important part of the case.
Individuals are entitled to access their personal medical records and can do so in a number of ways. The most usual methods to access records are as follows:
By administrative access to HSE records.
Under the Freedom of Information Acts 1997 and 2003.
Under the Data Protection Acts 1988 and 2003.
Via a court order for ‘Discovery’ in legal proceedings.
Each of these methods is considered below.
1. Accessing my Medical Records Administratively
This simply means that one is seeking the records as a matter of administration without invoking any of the statutory rights which are considered below at points 2 and 3. This can be done by writing to the records department of the relevant hospital or agency. It is vital that when doing so, you provide sufficient personal information that will help to locate your medical files i.e. your full name, your previous/current addresses, your date of birth, the time period that you were under their services and the relevant doctors or departments (if that information is available). You may also be asked to provide proof of identity in order to protect your confidentiality and ensure you are furnished with the correct records. Generally there will be no charge for copies of your personal records unless there is a large quantity of records that need to be photocopied etc. In this case, the hospital/health agency has the right to request a reasonable charge.
If you are refused access to your medical records administratively, you will have to make an application under the Freedom of Information Act or Data Protection Acts.
2. Making an Application under the Freedom of Information Acts 1997/2003
The Freedom of Information Acts (FOI Act) provides each individual with a right to access personal information, including medical records, held by public bodies covered by the Act.
The FOI Act applies to the Health Service Executive and all voluntary hospitals and health agencies. It does not apply to private hospitals or private healthcare facilities. The FOI Act applies to records held by GP’s where the patient holds a medical card. The FOI Act does not apply to records held by GP’s regarding private patients.
If you wish to make a request for your medical records under the FOI Act, you must apply in writing to the FOI unit or the records department of the relevant public body that has possession of such records. In making this request you should furnish as much information as possible to allow the hospital/doctor to identify your records i.e. your full name, your previous/current addresses, your date of birth, the time period that you were under their services and the relevant doctors or departments (if that information is available). It will also be necessary to provide proof of identity. You should also state the manner in which you seek access, i.e. do you wish to inspect the originals, will photocopies suffice, do you wish to obtain a copy of a computer disc or other electronic device containing the records etc. Generally it is advised, when making a request for medical records under the FOI Act, to state that you are seeking access to all records held electronically or otherwise. Generally, you should expect to receive a decision on whether access will be granted or not to your request within 20 working days. It can take, in some instances, considerably longer for the actual records to be copied and furnished. However, there are strict time limits in relation to the issuing of decisions to grant or refuse access. Unfortunately, the same time limits do not apply to the actual granting of the records.
Is there a Charge?
If you request personal information such as medical records, these will normally be furnished free of charge.
In certain circumstances it may be the case that the public body will refuse to grant access to medical records on the grounds that such disclosure would be prejudicial to the patients’ health and wellbeing. In such circumstances, you can request the public body to release your records to your doctor or other health professional on your behalf.
What if my Request for Access is Denied?
In the event that your request for medical records has been denied or you are unhappy with the decision made on your FOI request, you can appeal to the Internal Reviewer who will be named in the decision letter. You must make this appeal within four weeks of the initial decision being made. There are time limits within which the Internal Reviewer must acknowledge your application and within which the Internal Reviewer must make a decision. Unfortunately, these time limits are rarely adhered to.
Note however, that the decision to grant the records is not the same as actually obtaining the records. The actual copying of the records can take some time.
In the event that you are subsequently unhappy with the Internal Reviewers decision, you can appeal directly to the Information Commissioner who will carry out an independent assessment of the matter. You must appeal to the Information Commissioner within 6 months of the date that the Internal Reviewer’s decision has been made.
3. Requests via the Data Protection Acts
Another avenue that can be pursued by a patient seeking access to their medical records is via the Data Protection Acts 1988 and 2003 (DPA). These Acts provide similar rights of access as the FOI Acts but the DPA do not apply to records of deceased persons. This avenue is more appropriate for patients who have been treated privately. The legislation demands that any data held must be up to date and accurate. Under the DPA, each individual is entitled to enquire if there is data held about himself/herself. This applies to all data held either electronically or in a manual or paper based format. The DPA also provides a right to access that data and to have it corrected if it is inaccurate. Requests for access to medical records under the DPA should be in writing, clearly state the records required and enclose as much information as possible to correctly identify these records i.e. your full name, your previous/current addresses, your date of birth, the time period that you were under their services and the relevant doctors or departments, if that information is available. It will also be necessary to provide proof of identity .
Is there a Charge?
A fee of €6.35 is applicable to requests made under the DPA.
The only exception to the duty to disclose under the DPA, is if such disclosure is likely to cause serious harm to the physical and mental wellbeing of the individual seeking such disclosure.
What if my Request for Access is Denied?
Generally, a decision will issue within 40 days of receipt of the request. In the event that you are unhappy with the outcome of the request, you have a right to appeal to the Data Protection Commissioner.
A party to litigation can seek a Court Order directing a hospital or doctor to discover (furnish) that party’s medical records. Discovery may be made if the records are relevant to the litigation. It is an expensive costly process.
If you have problems accessing your records contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.